Liberty University School of Law Constitutional Law I Dean Tuomala ELEVENTH AMENDMENT I. Introduction A. Article III, 2, cl.1(1789).

The judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State . . . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. B. Chisholm v. Georgia (1793). The Supreme Court upheld jurisdiction in a case between a plaintiff from South Carolina and defendant Georgia. Georgia argued that states have sovereign immunity. C. Eleventh Amendment (1798). The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. II. Hans v. Louisiana and the Current Doctrine A. 18 Stat. 470 (1875). Congress extended federal question jurisdiction to federal district courts that is nearly as broad as today under 1331. B. Hans v. Louisiana (1890). Plaintiff (citizen of LA) sues LA in federal district court for a violation of the contract clause (Art. I, 10, cl. 1). Supreme Court ruled that sovereign immunity was implied in the Eleventh Amendment (Legal Fiction). C. Apparent premise of Hans the Eleventh Amendment was adopted not so much to do what it literally says, but to express in the Constitution a pre-constitutional understanding that after constitutional union the states continued to possess plenary sovereign immunity except to the extent explicitly [or implicitly] surrendered in the Constitution. Examples where sovereign immunity is surrendered: 1. Suits against a state by the United States. 2. Suits against a state by another state. 3. Suits against political subdivisions of states. D. Additionally, sovereign immunity may be abrogated when Congress passes a law pursuant to the Fourteenth Amendment, 5. However, there is no abrogation when Congress passes a law pursuant to its Article I powers. (Alden v. Maine (1999) plaintiff (citizen of ME) sued ME in state court on a federal right.) 1

III. The Officer-Suit Fiction A. Ex Parte Young (1908). Must persons wronged by a state go without a remedy? No! While the state may not be sued, the state official may be sued and injunctive relief obtained, in effect, against the state. (Legal Fiction When a state official acts outside the law it is not the state acting.) But be careful: 1. Must sue the state official individually. 2. May get injunctive relief against the state but not damages for past wrongs. 3. May sue the state official personally for past monetary damages. If that is the case what protection do state officials get? a. Absolute immunity for some state officials for some official acts. b. Limited immunity for other officials (i.e., did the official act reasonably in violating the law? Perhaps another Legal Fiction that it is reasonable to violate the law). B. Suits under the Fourteenth Amendment and 42 U.S.C. 1983 1. Fourteenth Amendment, 1. [N]or shall any state deprive any person of life, liberty, or property , without due process of law . . . . (Legal Fiction state includes cities, counties, school boards, etc. for Fourteenth Amendment purposes even if state doesnt include cities, counties, school boards, etc. for Eleventh Amendment purposes.) 2. 1983 a state officials official wrongful acts are considered the acts of the state (Legal Fiction contrary to Legal Fiction in Ex Parte Young) 3. Because 1983 was enacted pursuant to Congress Fourteenth Amendment, 5 power, the states sovereign immunity could be abrogated and a plaintiff could collect damages from the state for the wrongful act of a state official. IV. Continuing Debate over Hans, the Eleventh Amendment, and Sovereign Immunity Conservative wing of the Court States have sovereign immunity derived from original intent, common law, and the nature of federalism. E.g., Justice Kennedy in Alden v. Maine. [T]he contours of sovereign immunity are determined by the founders understanding, not by the principles or limitations derived from natural law. (sectionII.A.1.) Please note that he appears a little defensive about the suggestion that he is practicing natural law. 2

Liberal wing of the Court State sovereign immunity is a court-made rule, but we should be ruled by the text of the Eleventh Amendment. Even if sovereign immunity was a common law rule we know that the Framers were skeptical of general federal common law, and we finally set that straight in Erie. E.g., Justice Souter dissenting in Alden v. Maine. The conception that sovereign immunity is not inherited from the Crown but necessarily implied by statehood itself is thus not one of common law so much as of natural law, a universally applicable proposition discoverable by reason. (section I.) Please note that an accusation of practicing natural law is one of the most damning that can be made. But what is Justice Souter practicing when later in his Alden dissent he states that where there is a legal wrong there must be a remedy and quotes Marbury in support? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. Heres the topper from Stevens dissent in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank criticizing the conservative majoritys approach to sovereign immunity. The full reach of that cases [Seminole Tribe v. Florida (1996)] dramatic expansion of the judge-made doctrine of sovereign immunity is unpredictable; its dimensions are defined only by the present majoritys perception of constitutional penumbras rather than constitutional text. Until this expansive and judicially crafted protection of states rights runs its course, I shall continue to register my agreement with the views expressed in the dissents and in the scholarly commentary on that case.